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CIHM/ICMH 

Microfiche 

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CIHM/ICMH 
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20X 


24X 


28X 


32X 


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illustrent  la  mdthode. 


1 

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i:    1    : 

2. 

i      3 

1 

2 

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6 

^m^vtan 


mi\tt& 


COLONIAL  AND  CONSTITUTIONAL. 

EDITED  BY 

ALBERT  BUSHNELL  HART  and  EDWARD  CHANNING, 

OF  Harvard  University. 


NEW   YORK: 
A.    LOVELL    &    CO. 

Published  Bi- Monthly.     Annual  Subscription ,  y:>  cents. 

Entered  at  the  New  York  Postoffice  as  second-class  matter. 


No.  6. 


November,  1892. 


Price,  5  Cents. 


Copyright,  1893,  by  A.  Lovell  &  Co. 
EXTRACTS    FROM 

OFFICIAL    PAPERS    RELATING 

TO  THE 

BERING    SEA    CONTROVERSY. 
1790-1892. 


Four  serious  international  controversies  have  arisen  out  of  the  rival 
claims  of  Russia,  Great  Britain,  Spain,  and  the  United  States  to  the  shores 
and  waters  of  the  northwest  coast  of  the  continent  of  North  America. 
The  first  of  these  was  in  consequence  of  an  attempt  of  the  Spanish  Gov- 
ernment, in  1 790,  to  prevent  the  British  from  trading  with  the  natives  of 
that  coast.  It  was  settled  by  the  Nootka  Sound  Convention  of  October 
28,  1790,  by  which  the  subjects  of  both  powers  enjoyed  equal  privileges 
of  trade  to  all  points  not  already  occupied. 

The  second  controversy  was  the  result  of  an  attempt  of  Russia  in  1821 
to  prohibit  England  and  the  United  States  from  trading  anywhere  north 
of  the  fifty-first  parallel,  or  to  approach  within  one  hundred  Italian  miles 
of  the  coast.  Both  governments  energetically  protested  and  secured 
treaties  in  1824  and  1825,  by  which  they  retained  the  right  of  fishing  and 
of  landing  on  unoccupied  points  of  that  coast. 

The  third  controversy  was  as  to  the  division  of  the  coast  between 
Great  Britain  and  the  United  States,  Spain  having  by  the  treaties  of 
1824  and  1825  accepted  the  parallel  of  54°  40'  as  her  southern  boundary. 
The  rival  claims  of  the  two  remaining  powers,  after  long  diplomatic  dis- 

l 


cussion,  were  settled  by  the  treaty  of  July  17,  1846,  according  to  which 
the  parallel  of  49°  was  made  the  dividing  line. 

By  the  treaty  of  March  30,  1867,  with  Russia,  all  the  dominions  and 
claims  of  that  country  on  the  continent  of  North  America  and  the  outly- 
ing islands  thereof  were  transferred  to  the  United  States.  A  further,  and 
still  pending,  controversy  arose  in  1886  through  the  seizure  by  United 
States  vessels  of  Canadian  vessels  engaged  in  the  taking  of  seals  in  waters 
not  far  distant  from  the  Aleutian  Islands.  The  claim  of  the  United  States 
was  that  it  had  acquired  from  Russia  exclusive  rights  in  Behring  Sea,  at 
least  with  regard  to  seal  fishing.  The  British  Government  representing 
the  Canadians  denied  that  there  could  be  ajiy  exclusive  rights  outside 
three  miles  off  shore.  .By  an  agreement  of  February  29,  1892,  the  ques- 
tion has  been  submitted  to  arbitration. 

The  principal  authorities  on  this  subject  are :  Charles  B.  Elliott,  The 
United  States  and  Northwestern  Fisheries,  Minneapolis,  1887;  Stephen 
B.  Stanton,  The  Behring  Sea  Controversy,  New  York,  1892 ;  the  official 
correspondence  to  be  found  in  connection  with  the  following  messages 
of  the  President: — April  15,  1822,  American  State  Papers,  Foreign  Rela- 
tions, IV.,  851-864, — December  13,  1824,  American  State  Papers,  Foreign 
Relations,  V.,  432--471, — February  12,  1889,  Senate  Executive  Documents, 
joth  Congress,  sa  Session,  No.  106,  and  also  Foreign  Relations  for  1888, — 
June  23,  1890,  House  Executive  Doctunents,  ^ist  Congress,  ist  Session, 
No.  450,  and  also  Foreign  Relations  for  i8go, — June  6,  1891,  House 
Executive  Documents,  jist  Congress,  2d  Session,  No.  144, — March  8, 
1892,  Senate  Executive  Documents,  J2d  Congress,  jst  Session,  No.  55, — 
March  23,  1892  {pamphlet). 


I 


1790,  Oct.  28. 


'     1 

■  \ 

V 

y    '   ■ 

NooTKA  Sound  Convention  between 
England  and  Spain. 


Article  III.  .  .  .  Between  the  two  contracting  parties  it  is 
agreed  that  their  respective  subjects  shall  not  be  disturbed  nor 
molested,  either  in  navigating  or  carrying  on  their  fisheries  in  the 
Pacific  Ocean,  or  in  the  South  Seas,  or  in  landing  on  the  coasts 
of  those  seas,  in  places  not  already  occupied,  for  the  purpose  of 
carrying  on  their  commerce  with  the  natives  of  the  country,  or 
of  making  settlements  there :  the  whole  subject,  nevertheless, 
to  the  restrictions  and  provisions  specified  in  the  three  follow- 
ing articles : 

Article  IV.  His  Britannic  majesty  engages  to  take  the 
most  effectual  measures  to  prevent  the  navigation  and  fishery 
of  his  subjects  in  the  Pacific  Ocean,  or  in  the  South  Seas,  from 
being  made  a  pretext  for  iUicit  trade  with  the  Spanish  settle- 
ments ;  and,  with  this  view,  it  is  moreover  expressly  stipulated, 
that  British  subjects  shall  not  navigate  or  carry  on  their  fishery 


in  the  said  seas  within  the  space  of  ten  sea  leagues  from  any 
part  of  the  coasts  already  occupied  by  Spain. — Annual  Hegis- 
ter,  1790,  p.  304. 


1793,    Nov.    8. 


Secretary  Jefferson 
French  Minister. 


TO    Mr.   Genet, 


The  greatest  distance  to  which  any  respectable  assent  among 
nations  has  been  at  any  time  given,  has  been  the  extent  of  the 
human  sight,  estimated  at  upwards  of  twenty  miles ;  and  the 
smallest  dista  ce,  I  believe,  claimed  by  any  nation  whatever, 
is  the  utmost  range  of  a  cannon-ball^  usually  stated  at  one  sea 
league. — \^h3X\.on,  I)igest  of  the  Ijtternational  Law  of  the  U.  S., 
I.  §  32,  p.  100. 


1796,  Sept.  2. 


Secretary  Pickering  to  the  Governor 
OF  Virginia. 


Our  jurisdiction  has  been  fixed  (at  least  for  the  purpose  of 
regulating  the  conduct  of  the  Government  in  regard  to  any 
events  arising  out  of  the  present  European  war)  to  extend 
three  geographical  miles  (or  nearly  three  and  a  half  English 
miles)  from  our  shores,  with  the  exception  of  any  waters  or 
bays  which  are  so  land-locked  as  to  be  unquestionably  within 
the  jurisdiction  of  the  United  States,  be  their  extent  what  they 
may. — Wharton,  Digest  of  the  International  Law  of  the  U.  S.j 
I.  §32,  p.  100. 

1799.     Ukase  of  Emperor  Paul  of  Russia. 

[The  text  has  not  been  found  in  the  correspondence.  The 
Marquis  of  Salisbury,  in  a  dispatch  to  Sir  Julian  Pauncefote 
of  Aug.  2,  i8qo,  says  of  it:] 

It  appears  ir-jm  the  published  papers  that  in  1799  the  Em- 
peror Paul  I.  granted  by  charter  to  the  Russian-American 
Company  the  exclusive  right  of  hunting,  trade,  industries,  and 
discoveries  of  new  land  on  the  northwest  coast  of  America, 
from  Behring's  Strait  to  the  fifty-fifth  degree  of  north  latitude, 
with  permission  to  the  company  to  extend  their  discoveries  to 
the  south  and  to  form  establishments  there  provided  they  did 
not  encroach  upon  the  territory  occupied  by  other  powers. 

Jhe  southern  limit  thus  provisionally  assigned  to  the  cpn)- 


pany  Cx,.xesponds,  within  twenty  or  thirty  miles,  with  that 
which  was  eventually  agreed  upon  as  the  boundary  between 
the  British  and  Russian  possessions.  It  comprises  not  only 
the  whole  American  coast  of  Behring's  Sea,  but  a  long  reach 
of  coast  line  to  the  south  of  the  Alaskan  peninsula  as  far  as 
the  level  of  the  southern  portion  of  Prince  of  Wales  Island. 

The  charter,  which  was  issued  at  the  time  of  the  great 
European  excitement,  attracted  apparently  little  attention  at 
the  moment  and  gave  rise  to  no  remonstrance.  It  made  no 
claim  to  exclusive  jurisdiction  over  the  sea,  nor  do  any  meas- 
ures appear  to  have  been  taken  under  it  to  restrict  the  com- 
merce, navigation,  or  fishery  of  the  subjects  of  foreign  nations. 
— Foreign  Relations^  1890,  p.  456. 


1 82 1,  Sept.  4.     Ukase   of    Emperor   Alexander   I.    of 

Russia. 

(American  Translation.) 

Section  I.  The  transaction  of  commerce,  and  the  pursuit 
of  whaling  and  fishing,  or  any  other  industry  on  the  islands,  in 
the  harbors  and  inlets,  and,  in  general,  all  along  the  north- 
western coast  of  America  from  Behring  Strait  to  the  fifty-first 
parallel  of  northern  latitude,  and  likewise  on  the  Aleutian  Isl- 
ands and  along  the  eastern  coast  of  Siberia,  and  on  the  Kurile 
Islands ;  that  is,  from  Behring  Strait  to  the  southern  promon- 
tory of  the  island  of  Urup,  viz.,  as  far  south  as  latitude  forty- 
five  degrees  and  fifty  minutes  north,  are  exclusively  reserved 
to  subjects  of  the  Russian  Empire. 

Section  II.  Accordingly,  no  foreign  vessel  shall  be  al- 
lowed either  to  put  to  shore  at  any  of  the  coasts  and  islands 
under  Russian  dominion  as  specified  in  the  preceding  section, 
or  even  to  approach  the  same  to  within  a  distance  of  less  than 
one  hundred  ItaUan  miles.  Any  vessel  contravening  this  pro- 
vision shall  be  subject  to  confiscation  with  her  whole  cargo. — 
Foreign  Relations^  1890,  p.  439. 

1822,  Feb.  25.     Secretary  Adams  to  Russian  Minister 

POLETICA. 

I  am  directed  by  the  President  of  the  United  States  to  in- 
form you  that  he  has  seen  with  surprise,  in  this  edict,  the  as- 
^^rtipn  pf  ^  territorial  claim  on  the  part  of  Russia,  extending 


5 

to  the  fifty-first  degree  of  north  latitude  on  this  continent,  and 
a  regulation  interdicting  to  all  commercial  vessels  other  than 
Russian,  upon  the  penalty  of  seizure  and  confiscation,  the  ap- 
proach upon  the  high  seas  within  one  hundred  Italian  miles 
of  the  shores  to  which  that  claim  is  made  to  apply.  ...  It 
was  expected  before  any  act  which  should  define  the  bound- 
aries between  the  United  States  and  Russia  on  this  continent, 
that  the  same  would  have  been  arranged  by  treaty  between 
the  parties.  To  exclude  the  vessels  of  our  citizens  from  the 
shore,  beyond  the  ordinary  distance  to  which  the  territorial 
jurisdiction  extt.  ids,  has  excited  still  greater  surprise. — Ameri- 
can State  Papers,  Foreign  Relations,  IV.  871. 


1822,  Feb.  28. 


Russian  Minister  Poletica  to  Secretary 
Adams. 


I  shall  be  more  succinct,  sir,  in  the  exposition  of  the  motives 
which  determined  the  Imperial  Government  to  prohibit  foreign 
vessels  from  approaching  the  northwest  coast  of  America  be- 
longing to  Russia  within  the  distance  of  at  least  one  hundred 
Italian  miles.  This  measure,  however  severe  it  may  at  first 
view  appear,  is,  after  all,  but  a  measure  of  prevention.  It  is 
exclusively  directed  against  the  culpable  enterprises  of  foreign 
adventurers,  who,  not  content  with  exercising  upon  the  coasts 
above  mentioned  an  illicit  trade  very  prejudicial  to  the  rights 
reserved  entirely  to  the  Russian- American  Company,  take  upon 
them  besides  to  furnish  arms  and  ammunition  to  the  natives 
in  the  Russian  possessions  in  America,  exciting  them  like- 
wise in  every  manner  to  resistance  and  revolt  against  the 
authorities  there  established.  .  .  .  Pacific  means  not  having 
brought  any  alleviation  to  the  just  grievances  of  the  Russian- 
American  Company  against  foreign  navigators  in  the  waters 
which  environ  their  establishments  on  the  northwest  coast  of 
America,  the  Imperial  Government  saw  itself  under  the  ne- 
cessity of  having  recourse  to  the  means  of  coercion,  and  of 
measuring  the  rigor  according  to  the  inveterate  character  of 
the  evil  to  which  it  is  wished  to  put  a  stop.  .  .  . 

I  ought,  in  the  last  place,  to  request  you  to  consider,  sir, 
that  the  Russian  possessions  in  the  Pacific  Ocean  extend,  on 
the  northwest  coast  of  America,  from  Behring  Strait  to  the 
fifty-first  degree  of  north  latitude,  and  on  the  opposite  side  of 
Asia,  and  the  islands  adjacent,  from  the  same  strait  to  the  forty- 


6 

fifth  degree.  The  extent  of  sea,  of  which  these  possessions 
form  the  limits,  comprehends  all  the  conditions  which  are  or- 
dinarily attached  to  shut  seas  {tners  fermees),  and  the  Russian 
Government  might  consequently  judge  itself  authorized  to 
exercise  upon  this  sea  the  right  of  sovereignty,  and  especially 
that  of  entirely  interdicting  the  entrance  of  foreigners.  But 
it  preferred  only  asserting  its  essential  rights,  without  taking 
any  advantage  of  localities. — American  State  Papers,  Foreign 
Relations,  IV.  862. 


1822,  Mar.  30. 


Secretary  Adams  to  Russian  Minister 
poletica. 


i 


This  pretension  is  to  be  considered  not  only  with  reference 
to  the  question  of  territorial  right,  but  also  to  that  prohibition 
to  the  vessels  of  other  nations,  including  those  of  the  United 
States,  to  approach  within  one  hundred  Italian  miles  of  the 
coasts.  From  the  period  of  the  existence  of  the  United  States 
as  an  independent  nation,  their  vessels  have  freely  navigated 
those  seas,  and  the  right  to  navigate  them  is  a  part  of  that  in- 
dependence. 

With  regard  to  the  suggestion  that  the  Russian  Government 
might  have  exercised  the  right  of  sovereignty  over  the  Pacific 
Ocean  as  a  close  sea,  because  it  claims  territory  both  on  its 
American  and  Asiatic  shores,  it  may  suffice  to  say  that  the 
distance  from  shore  to  shore  on  this  sea,  in  latitude  51° 
north,  is  not  less  than  ninety  degrees  of  longitude,  or  four 
thousand  miles. 

As  little  can  the  United  States  accede  to  the  justice  of  the 
reason  assigned  for  the  prohibition  above  mentioned.  The 
:ght  of  the  citizens  of  the  United  States  to  hold  commerce 
with  the  aboriginal  natives  of  the  northwest  coast  of  America, 
without  the  territorial  jurisdiction  of  other  nations,  even  in 
arms  and  munitions  of  war,  is  as  clear  and  indisputable  as  that 
of  navigating  the  seas. — American  State  Papers,  Foreign  Re- 
lations, IV.  863. 

1822,  Nov.  I.     Secretary  Adams  on  the  Russian  Claim. 

I  received  a  dispatch  from  H.  Middleton,  our  minister  at 
St.  Petersburg,  dated  20th  August,  relating  entirely  to  the 


7 

Northwest  Coast  controversy.  The  Baron  de  Tuyl  is  coming 
out  as  minister  from  Russia,  charged  with  a  proposal  for  ne- 
gotiating on  the  subject.  Speransky,  now  Governor-General 
of  Siberia,  told  Middleton  that  they  had  at  first  thought  of 
declaring  the  Northern  Pacific  Ocean  a  "  mare  clausum,''  but 
afterward  took  the  one  hundred  Italian  miles  from  the  thirty 
leagues  in  the  Treaty  of  Utrecht,  which  is  an  exclusion  only 
from  a  fishery,  and  not  from  navigi^ion. — John  Quincy  Adams, 
Memoirs,  VI.  93. 

1823,  July  17.'  Secretary  Adams  to  Baron  Tuvl,  Rus- 
sian Minister. 

Baron  Tuyl  came,  ...  I  told  h"m  especially  that  we  should 
contest  the  right  of  Russia  to  any  territorial  establishment  on 
this  continent,  and  that  we  should  assume  distinctly  the  princi- 
ple that  the  American  continents  are  no  longer  subjects  for 
any  new  European  colonial  establishmenU,  We  had  a  con- 
versation of  an  hour  or  more,  at  the  close  of  which  he  said 
that  although  there  would  be  difficulties  in  the  negotiation,  he 
did  not  foresee  that  they  would  be  insurmountable. — ^John 
Quincy  Adams,  Memoirs,  VI.  163. 


1823,  July  22.     Secretary  Adams  to  Minister  Rush. 

Mr.  Paletica  answered  by  alleging  first  discovery,  occu- 
pancy, and  uninterrupted /<^i"i'<?j"^/^//. 

It  appears  upon  examination  that  these  claims  have  no 
foundation  on  fact.  ... 

As  yet,  however,  the  only  useful  purpose  to  which  the  north- 
west coast  of  America  has  been  or  can  be  made  subservient 
to  the  settlements  of  civilized  men  are  the  fisheries  on  its  ad- 
joining seas  and  trade  with  the  aboriginal  inhabitants  of  the 
country.  These  have  hitherto  been  enjoyed  in  common  by 
the  people  of  the  United  States,  and  by  the  British  and  Rus- 
sian nations.  The  Spanish,  Portuguese,  and  French  nations 
have  also  participated  in  them  hitherto,  without  other  annoy- 
ance than  that  which  resulted  from  the  exclusive  territorial 
claims  of  Spain,  so  long  as  they  were  insisted  on  by  her. 

The  United  States  and  Great  Britain  have  both  protested 


8 


against  the   Russian   Imperial  Ukase  of  September  4  (i6th), 
182  [. — Aiiirncan  State  Papers,  Foreii^n  Relations^  V.  446,  447. 


1823,  July  22. 


Secretary  Adams  to  Minister 

MiDDLETON. 


From  the  tenor  of  the  ukase,  the  pretensions  of  the  Impe- 
rial Government  extend  to  an  exclusive  territorial  jurisdiction 
from  the  forty-fifth  degree  of  north  latitude,  on  the  Asiatic 
coast,  to  the  latitude  of  fifty-one  north  on  the  western  coast  of 
the  American  continent ;  and  they  assume  the  right  of  inter- 
dicting the  navigation  and  the  fishery  of  all  other  nations  to 
the  extent  of  one  hundred  miles  from  the  whole  of  the  coast. 

The  United  States  can  admit  no  part  of  these  claims. 
Their  right  of  navigation  and  of  fishing  is  perfect,  and  has 
been  in  constant  exercise  trcMn  the  earliest  times,  after  the 
peace  of  1783,  throughout  the  whole  extent  of  the  Southern 
Ocean,  subject  only  to  the  ordinary  exceptions  and  exclusions 
of  the  territorial  jurisdictions,  which,  so  far  as  Russian  rights 
are  concerned,  are  confined  to  certain  islands  north  of  the 
fifty-fifth  degree  of  latitude,  and  have  no  existence  on  the 
continent  of  America. — American  State  Papers,  Foreign  Re- 
lations, V.  436. 


Vi   ■ 


1824,  April    17.     Treaty   between   the   United   States 

AND  Russia.* 

*  Official  translation  from  the  original,  which  is  in  the  French  language. 

Article  I.  It  is  agreed  that  in  any  part  of  the  Great 
Ocean,  commonly  called  the  Pacific  Ocean,  or  South  Sea,  the 
respective  citizens  or  subjects  of  the  high  contracting  Powers 
shall  be  neither  disturbed  nor  restrained,  either  in  navigation 
or  in  fishing,  or  in  the  power  of  resorting  to  the  coasts,  upon 
points  which  may  not  already  have  been  occupied,  for  the  pur- 
pose of  trading  with  the  natives,  saving  always  the  restrictions 
and  conditions  determined  by  the  following  articles. 

Article  II.  With  a  view  of  preventing  the  rights  of  navi- 
gation and  of  fishing  exercised  upon  the  Great  Ocean  by  the 
citizens  and  subjects  of  the  high  contracting  Powers  from  be- 
coming the  pretext  for  an  illicit  trade,  it  is  agreed  that  the 


citizens  of  the  United  States  shall  not  resort  to  any  point 
where  there  is  a  Russian  establishment,  without  the  permis- 
sion  of  the  governor  or  commander  ;  and  that,  reciprocally,  the 
subjects  of  Russia  shall  not  resort,  without  permission,  to  any 
establishment  of  the  United  States  upon  the  northwest  coast. 

Article  III.  It  is  moreover  agreed  that,  hereafter,  there 
shall  not  be  formed  by  the  citizens  of  the  United  States,  or 
under  the  authority  of  the  said  States,  any  establishment  upon 
the  northwest  coast  of  America,  nor  in  any  of  the  islands  ad- 
jacent, to  the  north  of  fifty-four  degrees  and  forty  minutes  of 
north  latitude ;  and  that,  in  the  same  manner,  there  shall  be 
none  formed  by  Russian  subjects,  or  nnder  the  authority  of 
Russia,  south  of  the  same  parallel. 

Article  IV.  It  is,  nevertheless,  urdcrstood  that  during  a 
term  of  ten  years,  counting  from  th  signature  of  the  present 
convention,  the  ships  of  both  Powers,  or  uhich  belong  to 
thvii-  citizens  or  subjects  respectively,  may  reciprocally  fre- 
quent, without  any  hindrance  whatever,  the  interior  seas,  gulfs, 
harbors,  and  creeks,  upon  the  coast  mentioned  in  the  pieced- 
ing  article,  for  the  purpose  of  fishing  and  trading  with  the 
natives  of  the  country. —  Treaties  and  Conventions  of  the  Ufiited 
States,  ed.  of  1889,  pp.  431,  432. 

1824,  Dec.  8.     George  Canning  to  Stratford  C  iNning. 

The  pretensions  of  the  Russian  ukase  of  1821,  to  exclusive 
dominion  over  the  Pacific,  could  not  continue  longer  unre- 
pealed without  compelling  us  to  take  some  measure  of  public 
and  effectual  remonstrance  against  it. 

The  right  of  the  subjects  of  His  Majesty  to  navigate  freely 
in  the  Pacific  cannot  be  held  as  a  matter  of  indulgence  from 
any  power.  Having  once  been  publicly  questioned  it  must 
be  publicly  acknowledged. — Foreign  Relations,  1890,  p.  464. 

1825,  Feb.  28/16.     Convention  between  Great 
Britain  and  Russia. 

Article  I.  It  is  agreed  ihat  the  respective  subjects  of  the 
high  contracting  Parties  shall  not  be  troubled  or  molested,  in 
any  part  of  the  ocean  commonly  called  the  Pacific  Ocean, 
either  in  navigating  the  same,  in  fishing  therein,  or  in  landing 


10 


[{} 


m  I 


at  such  parts  of  the  coast  as  shall  not  have  been  already  oc- 
cupied, in  orde'  to  trade  with  the  natives,  under  the  restric- 
tions and  conditions  specified  in  the  following  articles. 

Article  II.  In  order  to  prevent  the  right  of  navigating  and 
fishing,  exercised  upon  the  ocean  by  the  subjects  of  the  high 
contracting  Parties,  from  becoming  the  pretext  for  an  illicit 
commerce,  it  is  agreed  that  the  subjects  of  His  Britannic 
Majesty  shall  not  land  at  any  place  where  there  may  be  a 
Russian  establishment  on  the  Northwest  coast. 

Article  III.  The  hne  of  demarkation  between  the  pos- 
sessions of  the  high  contracting  Parties,  upon  the  coast  of  the 
continent,  and  the  islands  of  America  to  the  Northwest,  shall 
be  drawn  in  the  manner  following. — Foreign  Relations^  1890, 

P-  503- 


1863,  Aug.  10.     Secretary  Seward  to  Mr.  Taessara, 
Spanish  Representative. 

The  undersigned  would  observe,  in  the  first  place,  that 
there  are  two  principles  bearing  on  the  subject  which  are  uni- 
versally admitted,  namely,  first,  that  the  sea  is  open  to  all 
nations,  and  secondly,  that  there  is  a  portion  of  the  sea  adja- 
cent to  every  nation  over  which  the  sovereignty  of  that  nation 
extends  to  the  exclusion  of  every  other  political  authority. 

A  third  principle  bearing  on  the  subject  is  also  well  estab- 
lished, namely,  that  this  exclusive  sovereignty  of  a  nation, 
thus  abridging  the  universal  liberty  of  the  seas,  extends  no 
farther  than  the  power  of  the  nation  to  maintain  it  by  force, 
stationed  on  the  coast,  extends.  This  principle  is  tersely 
expressed  in  the  maxim  Terrce  dominium  finitur  ubi  finitur 
armarum  vis. — Wharton,  Digest  of  the  International  Laiv  of 
the  U.  S.,  I.  §  32,  p.  102. 


1867,  Mar.   30. 


Treaty   with  Russia  for  the  Cession 
OF  Alaska. 


Article  I.  His  Majesty  the  Emperor  of  all  the  Russias 
agrees  to  cede  to  the  United  States,  by  this  convention,  im- 
mediately upon  the  exchange  of  the  ratifications  thereof,  all 
the  territory  and  dominion  now  possessed  by  his  said  Majesty 
on  the  continent  of  America  and  in  the  adjacent  islands,  the 


same  being  contained  within  the  geographical  h'mits  herein 
set  forth,  to  wit :  The  eastern  limit  is  the  line  of  demarcation 
between  the  Russian  and  the  British  possessions  in  North 
America,  as  established  by  the  convention  between  Russia 
and  Great  Britain,  of  February  28/16,  1825.  .  .  . 

The  western  limit  within  which  the  territories  and  dominion 
conveyed  are  contained  passes  through  a  point  in  Behring's 
Straits  on  the  parallel  of  sixty-five  degrees  thirty  minutes 
north  latitude,  at  its  intersection  by  the  meridian  which  passes 
midway  between  the  islands  of  Krusenstern  or  Ignalook,  and 
the  island  of  Ratmanoff,  or  Noonarbook,  and  proceeds  due 
north,  without  limitation,  into  the  same  Frozen  Ocean.  The 
same  western  Hmit,  beginning  at  the  same  initial  point,  pro- 
ceeds thence  in  a  course  nearly  southwest,  through  Behring's 
Straits  and  Behring's  Sea,  so  as  to  pass  midway  between  the 
northwest  point  of  the  island  of  St.  Lawrence  and  the  south- 
east point  of  Cape  Choukotski,  to  the  meridian  of  one  hun- 
dred and  seventy-two  west  longitude  ;  thence  from  the  inter- 
section of  that  meridian  in  a  southwesterly  direction,  so  as  to 
pass  midway  between  the  island  of  Attou  and  the  Copper 
Island  of  the  Kormandorski  couplet  or  group,  in  the  North 
Pacific  Ocean,  to  the  meridian  of  one  hundred  and  ninety- 
three  degrees  west  longitude,  so  as  to  include  in  the  territory 
conveyed  the  whole  of  the  Aleutian  Islands  east  of  that 
meridian.  .  .  . 

Article  VI.  The  cession  of  territory  and  dominion  herein 
made  is  hereby  declared  to  be  free  and  unincumbered  by  any 
reservations,  privileges,  franchises,  grants,  or  possessions,  by 
any  associated  companies,  whether  corporate  or  incorporate, 
Russian  or  any  other,  or  by  any  parties  except  merely  private 
individual  property-holders ;  and  the  cession  hereby  made 
conveys  all  the  rights,  franchises,  and  pri\  ileges  now  belong- 
ing to  Russia  in  the  said  territory  or  dominion,  and  appurte- 
nances thereto. — Treaties  and  Conventions  of  the  United  States, 
ed.  of  1889,  pp.  939-941. 


1870,  July  I.     Act  of  Congress  on  Seal  Fishing. 

That  it  shall  be  unlawful  to  kill  any  fur-seal  upon  the  islands 
of  St.  Paul  and  St,  George,  or  in  the  waters  adjacent  thereto, 


12 


J'    ' 


except  during  the  months  of  June,  July,  September,  and  Oc- 
tober in  each  year ;  and  it  shall  be  unlawful  to  kill  such  seals 
at  any  time  by  the  use  of  fire-arms,  or  use  of  other  means 
tepding  to  drive  the  seals  away  from  the  said  islands :  J^o- 
vided^  That  the  natives  of  said  islands  shall  have  the  privilege 
of  killing  such  young  seals  as  may  be  necessary  for  their  own 
food  and  clothing  during  other  months.  .  .  .  The  Secretary  of 
the  Treasury  shall  lease,  for  the  rental  mentioned  in  Section 
six  of  this  act,  to  proper  and  responsible  parties,  to  the  best 
advantage  of  the  United  States,  having  due  regard  to  the  in- 
terests of  the  Government,  the  native  inhabitants,  the  parties 
heretofore  engaged  in  trade,  and  the  protection  to  the  seal 
fisheries,  for  a  term  of  twenty  years  from  the  first  day  of  May, 
eighteen  hundred  and  seventy,  the  right  to  engage  in  the 
business  ot  taking  fur-seals  on  the  islands  of  St.  Paul  and  St. 
George. —  United  States  Statutes  at  Large,  XVI.  i8o,  i8i. 


1872,  Apr.  19. 


Secr^^'^ary  Boutwell  to  Collector 
Phelps. 


Your  letter  of  the  25th  ultimo  was  duly  received,  calling 
the  attention  of  the  Department  to  certain  rumors  circulating 
in  San  Francisco,  to  the  effect  that  expeditions  are  to  start 
from  Australia  and  the  Hawaiian  Islands,  to  take  fur-seals  on 
their  annual  migration  to  the  islands  of  St.  Paul  and  St.  George 
through  the  narrow  pass  of  Oonimak.  You  recommend,  to 
cut  off  the  possibility  of  evil  resulting  to  the  interests  of  the 
United  States  from  these  expeditions,  that  a  revenue  cutter 
be  sent  to  the  region  of  Oonimak  Pass,  by  the  15th  of  May 
next.  ...  I  do  not  see  that  the  United  States  would  have 
the  jurisdiction  or  power  to  drive  off  parties  going  up  there  for 
that  purpose,  unless  they  made  such  attempt  within  a  marine 
league  of  the  shore. — Senate  Executive  Documents,  50  Cong., 
2  Sess.,  No.  106,  pp.  139,  140. 


r  H 


1875,  Jan.  22. 


Secretary  Fish  to  British  Minister 
Thornton. 


We  have  always  understood  and  asserted  that,  pursuant  to 
public  law,  no  nation  can  rightfully  claim  jurisdiction  at  sea 


13 

beyond  a  marine  league  from  its  coast. — Wharton,  Digest  of 
the  International  Law  of  the  U.  S.,  §  32,  p.  105. 

1875,  Dec.  I.     Secretary  Fish  to  Mr.  Boker. 

There  was  reason  to  hope  that  the  practice  which  formerly 
prevailed  with  powerful  nations  regarding  seas  and  bays  usu- 
ally of  large  extent  near  their  coast  as  closed  ::o  any  foreign 
commerce  or  fishery  not  specially  licensed  by  them,  was, 
without  exception,  a  pretension  of  the  past,  and  that  no  nation 
would  claim  exemption  from  the  general  rule  of  public  law 
which  limits  its  maritime  jurisdiction  to  a  marine  league  from 
its  coast.  We  should  particularly  regret  if  Russia  should  in- 
sist on  any  such  pretension. — Wharton,  Digest  of  the  Inter- 
national Law  of  the  U.  S.,  I.  §  32,  p.  106. 


1881,  Mar.  12. 


Acting  Secretary  French  to  Mr. 
D'Ancona. 


You  inquire  into  the  interpretation  of  the  terms  "waters 
thereof "  and  "  waters  adjacent  thereto,"  as  used  in  the  law, 
and  how  far  the  jurisdiction  of  the  United  States  is  to  be  un- 
derstood as  extending. 

Presuming  your  inquiry  to  relate  more  especially  to  the 
waters  of  western  Alaska,  you  are  informed  that  the  treaty 
with  Russia  of  March  30,  1870,  by  which  the  Territory  of 
Alaska  was  ceded  to  the  United  States,  defines  the  boundary 
of  the  Territory  so  ceded.  This  treaty  is  found  on  pages  671 
to  673  of  the  volume  of  treaties  of  the  Revised  Statutes.  It 
will  be  seen  therefrom  that  the  limit  of  the  cession  extends 
from  a  line  starting  from  the  Arctic  Ocean  and  running  through 
Behring  Strait  to  the  north  of  St.  Lawrence  Islands.  The  line 
runs  thence  in  a  southwesterly  direction,  so  as  to  pass  midway 
between  the  island  of  Attou  and  Copper  Island  of  the  Kroman- 
boski  couplet  or  group  in  the  North  Pacific  Ocean,  to  merid- 
ian of  193  of  west  longitude.  All  the  waters  within  that 
boundary  to  the  western  end  of  the  Aleutian  Archipelago  and 
chain  of  islands  are  considered  as  comprised  within  the  waters 
of  Alaska  Territory. — Senate  Executive  Documents,  50  Con^., 
2  Sess. f  No.  106,  p.  281. 


I   s 


0 

I 


!i  I 


1,1 


V: 


1886,  May  28. 


H 


Secretary  Bayard  to  Secretary 

Manning. 


We  may,  therefore,  regard  it  as  settled,  that  so  far  as  con- 
cerns the  eastern  coast  of  North  America,  the  position  of  this 
Department  has  uniformly  been  that  the  sovereignty  of  the 
shore  does  not,  so  far  as  territorial  authority  is  concerned, 
extend  beyond  three  miles  from  low-water  mark,  and  that  the 
seaward  boundary  of  this  zone  of  territorial  waters  follows  the 
coast  of  the  mainland,  extending  where  there  are  islands  so 
as  to  place  round  such  islands  the  same  belt.  This  necessarily 
excludes  the  position  that  the  seaward  boundary  is  to  be  drawn 
from  headland  to  headland,  and  makes  it  follow  closely,  at  a 
distance  of  three  miles,  the  boundary  of  the  shore  of  the  con- 
tinent or  of  adjacent  islands  belonging  to  the  continental 
sovereign. — Wharton,  Digest  of  the  International  Law  of  the 
U.  S.,  §  32,  pp.  107,  108. 

1886,  Oct.  4.     Judge  Dawson's  Charge  in  the  "  Onward  " 

Case. 

All  the  waters  within  the  boundary  set  forth  in  this  treaty 
to  the  western  end  of  tlie  Aleutian  archipelago  and  the  chain 
of  islands  are  to  be  considered  as  comprised  within  the  waters 
of  Alaska,  and  all  the  penalties  prescribed  by  law  against  the 
killing  of  fur-bearing  animals  must  therefore  attach  against 
any  violation  of  Hw  within  the  limits  heretofore  described. 

If,  therefore,  the  jury  believe  from  the  evidence  that  the 
defendants  by  themselves  or  in  conjunction  with  others  did,  on 
or  about  the  time  charged  in  the  information,  kill  any  otter, 
mink,  marten,  sable,  or  fur-seal,  or  other  fur-bearing  animal  or 
animals,  on  the  shores  of  Alaska  or  in  the  Behring  Sea,  east  of 
the  193d  degree  of  west  longitude,  the  jury  should  find  the 
defendants  guilty. — Stanton,  The  Behring  Sea  Controversy^  7. 

1886,  Oct.  21.     Minister  West  to  Secretary  Bayard. 

I  have  the  honor  to  inform  you  that  I  am  now  instructed 
by  the  Earl  of  Iddesleigh,  Her  Majesty's  principal  secretary 
of  state  for  foreign  affairs,  to  protest  in  the  name  of  Her 
Majesty's  Government  against  such  seizure,  and  to  reserve  all 
rights  to  compensation. — Foreign  Relations^  1888,  p.  1746, 


»5 

1887,  Jan.  26.     Attorney-General   Garland   to  Judge 

Dawson. 

I  .am  directed  by  the  President  to  instruct  you  to  discon- 
tinue any  further  proceedings  in  the  matter  of  the  seizure  of 
the  British  vessels  Carolena,  Onward,  and  Thornton,  and  dis- 
charge all  vessels  now  held  under  such  seizure  and  release  all 
persons  that  may  be  under  arrest  in  connection  therewith. — 
Foreign  Relations,  1888,  p.  1801. 

1887,  Sept.  15.     Canadian  Minister  Foster's  Report. 

It  is  respectfully  submitted  that  this  condition  of  affairs  is 
in  the  highest  degree  detrimental  to  the  interests  of  Canada, 
and  should  not  be  permitted  to  continue.  For  nearly  two 
years  Canadian  vessels  have  been  exposed  to  arbitrary  seizure 
and  confiscation  in  the  pursuit  of  a  lawful  occupation  upon  the 
high  seas,  and  Canadian  citizens  subjected  to  imprisonment 
and  serious  financial  loss,  while  an  important  and  remunera- 
tive Canadian  industry  has  been  threatened  with  absolute  ruin. 
This  course  of  action  has  been  pursued  by  United  States 
officers  in  opposition  to  the  contention  in  the  past  of  their 
Government  in  regard  to  the  waters  in  which  these  seizures 
have  taken  place,  in  violation  of  the  i)lainest  dictates  of  in- 
ternational law  and  in  the  face  of  vigorous  protests  of  both 
the  Canadian  and  British  Governments. — Foreign  Fehitiofis, 

1888,  p.  1800. 

1889,  Mar.  2.     Act  of  Congress  on  Territorial 

Jurisdiction. 

Section  3.  That  section  nineteen  hundred  and  fifty-six  of 
the  Revised  Statules  of  the  United  States  is  hereby  declared 
tw  include  and  apply  to  all  the  dominion  of  the  United  States 
in  the  waters  of  Behring  Sea  ;  and  it  shall  be  the  duty  of  the 
President,  at  a  timely  season  in  each  year,  to  issue  his  procla- 
mation and  cause  the  same  to  be  published  for  one  month  in 
at  least  one  newspaper,  if  any  such  there  be  published,  at  each 
United  States  port  of  entry  on  the  Pacific  coast,  warning  all 
persons  against  entering  saiv'  waters  for  the  purpose  of  violat- 
ing the  provisions  of  said  section ;  and  he  shall  also  cause 
one  or  more  vessels  of  the  United  States  to  diligently  cruise 


t6 

said  waters  and  arrfxsf  oii 

to  be,  or  to  have  iZn  e^J^'T''''  ^"^  «^'^e  all  vessels  fn,    ^ 

^He  United  Stater:;;;Sfl^^^-«^^^     ofTeto 

'«9o,  Jan.  ...     Secretary  Bla.nk  to  b. 

Pauncefote  "'"""  Minister 

-e.t,&jyHe  P     M    .^^  CaT,ad,a„  vesse.  a. 
suit  that  was  in  itself  .^  /^^"""g  bea  were  enea^ed  m  o 

of  the  extent  !„d  natur 'of    heT'"''-"'  ''^Sue  the  q^istL 
■nem  over  the  waters  of  the  BehnWr*"'^  "'  '^is  ^ove™? 

attat-^  ti:5nf  °™  ^^^^^^ 

fhe  acquisition  of  thJ?!/  ^^"^^^^rations  growing  nV  f 

ment  rests  its  justMcation  for  thl  »  ,    "P°"  "'''<=''  'his  govern 
Majesty's  Government.  "^  ^""'"  complained  of  by  He^ 

one  ofTeto's t  "lua Je" so°urt^  ^'^""^'^  ^--^-ent  that 

=S^:  et:^?^^  -~:^^  -:  a^j!;: 
-Tar  ^re^er''^'"'"''  -'  »^^^^^^^^^^    r"'^' 

any  source.  vlZZ)T  ""''""P^'O"  and  noUrusiST™' 
^^1  had  a,.ays  abstained  froJ^^S^l^^l^^^^ 
those  w^t^^rfhT^'i!''''^^"^^  o^  all  attemnts  fo  .  u    r 


17 

ernment.  It  has  also  been  the  recognition  of  a  fact  now  held 
beyond  denial  or  doubt  that  the  taking  of  seals  in  the  open 
sea  rapidly  leads  to  their  extinction.  This  is  not  only  the 
well-known  opinion  of  experts,  both  British  and  American, 
based  upon  prolonged  observation  and  investigation,  but  the 
fact  has  also  been  demonstrated  in  a  wide  sense  by  the  well- 
nigh  total  destruction  of  all  seal  fisheries  except  the  one  in  the 
Behring  Sea,  which  the  Government  of  the  United  States  is 
now  striving  to  preserve,  not  altogether  for  the  use  of  the 
American  people,  but  for  the  use  of  the  world  at  large.  .  .  . 

Whence  did  the  ships  of  Canada  derive  the  right  to  do  in 
1886  that  which  they  had  refrained  from  doing  for  more  than 
ninety  years  ?  Upon  what  grounds  did  Her  Majesty's  Gov- 
ernment defend  in  the  year  1886  a  course  of  conduct  in  the 
Behring  Sea  which  she  had  carefully  avoided  evei  since  the  dis- 
covery of  that  sea  ?  By  what  reasoning  did  Her  Majesty's 
Government  conclude  that  an  act  may  be  committed  with 
impunity  against  the  rights  of  the  United  States  which  had 
never  been  attempted  against  the  Sc  me  rights  when  held  by 
the  Russian  Empire  ?  .  .  . 

The  ground  upon  which  Her  Majesty's  Government  jus- 
tifies, or  at  least  defends,  the  course  of  the  Canadian  vessels, 
rests  upon  the  fact  that  they  are  committing  their  acts  of 
destruction  on  the  high  seas,  viz.,  more  than  three  marine  miles 
from  the  shore  line.  It  is  doubtful  whether  Her  Majesty's 
Government  would  abide  by  this  rule  if  the  attempt  were  made 
to  interfere  with  the  pearl  fisheries  of  Ceylon,  which  extend 
more  than  twenty  miles  from  the  shore  line  and  have  been 
enjoyed  by  England  without  molestation  ever  since  their 
acquisition.  So  well  recognized  is  the  British  ownership  of 
those  fisheries,  regardless  of  the  hmit  of  the  three-mile  line, 
that  Her  Majesty's  Government  feels  authorized  to  sell  the 
pearl-fishing  right  from  year  to  year  to  the  highest  bidder. 
Nor  is  it  credible  that  modes  of  fishing  on  the  Grand  Banks, 
altogether  practicable  but  highly  destructive,  would  be  justified 
or  even  permitted  by  Great  Britain  on  the  plea  that  the  vicious 
acts  were  committed  more  than  three  miles  from  shore. 

There  are,  according  to  scientific  authority,  "  great  colonies 
of  fish"  on  the  "Newfoundland  banks."  These  colonies 
resemble  the  seats  of  great  population  on  land.     They  remain 


m 


i8 


'I  • 
t  '. 

i'i 


m 


stationary,  having  a  limited  range  of  water  in  which  to  live 
and  die.  In  these  great  "  colonies  "  it  is,  according  to  expert 
judgment,  comparatively  easy  to  explode  dynamite  or  giant 
powder  in  such  a  way  as  to  kill  vast  quantities  of  fish,  and  at 
the  same  time  destroy  countless  numbers  of  eggs.  Stringent 
laws  have  been  necessary  to  prevent  the  taking  of  fish  by  the 
use  of  dynamite  in  many  of  the  rivers  and  lakes  of  the  United 
States.  The  same  mode  of  fishing  could  readily  be  adopted 
with  effect  on  the  more  shallow  parts  of  the  banks,  but  the 
destruction  of  fish  in  proportion  to  the  catch,  says  a  high 
authority,  might  be  as  great  as  ten  thousand  to  one.  Would 
Her  Majesty's  Government  think  that  so  wicked  an  act  could 
not  be  prevented  and  its  perpetrators  punished  simply  because 
it  had  been  committed  outside  of  the  three-mile  line  ? 

Why  are  not  the  two  cases  parallel  ?  .  .  . 

In  this  contention  the  Government  of  the  United  States 
has  no  occasion  and  no  desire  to  withdraw  or  modify  the 
positions  which  it  has  at  any  time  maintained  against  the 
claims  of  the  Imperial  Government  of  Russia.  The  United 
States  will  not  withhold  from  any  nation  the  privileges  which 
it  demanded  for  itself  when  Alaska  was  part  of  the  Russian 
Empire. — Foreign  Relations,  1890,  pp.  366-370. 

1890,  May  22.     Prime-Minister  Salisbury  to  Minister 

Pauncefote. 

It  is  an  axiom  of  international  maritime  law  that  such  action 
is  only  admissible  in  the  case  of  piracy  or  in  the  pursuance  of 
special  international  agreement.  The  principle  has  been  uni- 
versally admitted  by  jurists,  and  was  very  distinctly  laid  down 
by  President  Tyler  in  his  special  message  to  Congress,  dated 
the  27th  of  February,  1843,  when,  after  acknowledging  the 
right  to  detain  and  search  a  vessel  on  suspicion  of  piracy,  he 
goes  on  to  say :  "  With  this  single  exception,  no  nation  has, 
in  time  of  peace,  any  authority  to  detain  the  ships  of  another 
upon  the  high  seas,  on  any  pretext  whatever,  outside  of  the 
territorial  jurisdiction." 

Now,  the  pursuit  of  seals  in  the  open  sea,  under  whatever 
circumstances,  has  never  hitherto  been  considered  as  piracy 
by  any  civihzed  state.  Nor,  even  if  the  United  States  had 
gone  so  far  as  to  make  the  killing  of  fur-seals  piracy  by  their 


19 

municipal  law,  would  this  have  justified  them  in  punishing 
offenses  against  such  law  committed  by  any  persons  other  than 
their  own  citizens  outside  the  territorial  jurisdiction  of  the 
United  States. 

In  the  case  of  the  slave  trade,  a  practice  which  the  civilized 
world  has  agreed  to  look  upon  with  abhorrence,  the  right  of 
arresting  the  vessels  of  another  country  is  exercised  only  by 
special  international  agreement,  and  no  one  government  has 
been  allowed  that  general  control  of  morals  in  this  respect 
which  Mr.  Blaine  claims  on  behalf  of  the  United  States  in 
regard  to  seal-hunting. 

But  Her  Majesty's  Government  must  question  whether  this 
pursuit  can  of  itself  be  regarded  as  contra  Iwnos  mores,  unless 
and  until,  for  special  reasons,  it  has  been  agreed  by  an  inter- 
national arrangement  to  forbid  it.  Fur-seals  are  indisputably 
animals  feroe  natune,  and  these  have  universally  been  regarded 
by  jurists  as  res  nullius  until  they  are  caught ;  no  person, 
therefore,  can  have  property  in  them  until  he  has  actually 
reduced  them  into  possession  by  capture.  .  .  . 

First,  as  to  the  alleged  exclusive  monopoly  of  Russia.  After 
Russia,  at  the  instance  of  the  Russian-American  Fur  Com- 
pany, claimed  in  1821  the  pursuits  of  commerce,  whaling,  and 
fishing  from  Behring  Straits  to  the  fifty-first  degree  of  north 
latitude,  and  not  only  prohibited  all  foreign  vessels  from  land- 
ing on  the  coasts  and  islands  of  the  above  waters,  but  also 
prevented  them  from  approaching  within  one  hundred  miles 
thereof,  Mr.  Quincy  Adams  wrote  as  follows  to  the  United 
States  minister  in  Russia : 

"  The  United  States  can  admit  no  part  of  these  claims  ;  their 
right  of  navigation  and  fishing  is  perfect,  and  has  been  in  con- 
stant exercise  from  the  earhest  times  throughout  the  whole 
extent  of  the  Southern  Ocean,  subject  only  to  the  ordinary 
exceptions  and  exclusions  of  the  territorial  jurisdictions." 

I  now  come  to  the  statement  that  from  1867  to  1886  the 
possession  was  enjoyed  by  the  United  States  with  no  interrup- 
tion and  no  intrusion  from  any  source.  Her  IMajesty's  Govern- 
ment can  not  but  think  that  Mr.  Blaine  has  been  misinformed 
as  to  the  history  of  the  operations  in  Behring  Sea  during  that 
period. 
-  The  instances  recorded  in  Inclosure  i  in  this  dispatch  are 


;t( 


20 


sufficient  to  prove  from  official  United  States  sources  that  from 
1867  to  1886  British  vessels  were  engaged  at  intervals  in  the 
fur-seal  fisheries  with  the  cognizance  of  the  United  States 
Government.  .  .  . 

Her  Majesty's  Government  do  not  deny  that  if  all  sealing 
were  stopped  in  Behring  Sea  except  on  the  islands  in  posses- 
sion of  the  lessees  of  the  United  States,  the  seal  may  increase 
and  multiply  at  an  even  more  extraordinary  rate  than  at  pres- 
ent, and  the  seal  fishery  on  the  island  may  become  a  monop- 
oly of  increasing  value ;  but  they  cannot  admit  that  this  is 
sufficient  ground  to  justify  the  United  States  in  forcibly 
depriving  other  nations  of  any  share  in  this  industry  in  waters 
which,  by  the  recognized  law  of  nations,  are  now  free  to  all 
the  world. — Foreign  Relations,  1890,  pp.  420-423. 


1890,  May  29.     Secretary  Blaine  to  Minister 

Pauncefote. 

I  am  instructed  by  the  President  to  protest  against  the 
course  of  the  British  Government  in  authorizing,  encouraging, 
and  protecting  vessels  which  are  not  only  interfering  with 
American  rights  in  the  Behring  Sea,  but  which  are  doing  vio- 
lence as  well  to  the  rights  of  the  civilized  world.  They  are 
engaged  in  a  warfare  against  seal  life,  disregarding  all  the 
regulations  which  lead  to  its  protection,  and  committing  acts 
which  lead  ultimately  to  its  destruction. — Foreign  Relations, 
1890,  p.  425. 


1890,  June  30. 


Secretary  Blaine  to  Minister 
Pauncefote. 


Mr.  Adams  protested  not  against  the  ukase  of  Paul,  but 
against  the  ukase  of  Alexander ;  not  wholly  against  the  ukase 
of  Alexander,  but  only  against  his  extended  claim  of  sover- 
eignty southward  of  the  continent  to  the  fifty-first  degree  north 
latitude.  In  short,  Mr.  Adams  protested,  not  against  the  old  pos- 
sessions, but  only  against  the  new  pretensions  of  Russia  on  the 
northwest  coast  of  America — pretensions  to  territory  claimed 
by  the  United  States  and  frequented  by  her  mariners  since  the 
peace  of  1783.  ...  It  is  very  plain  that  Mr.  Adams's  phrase 
"  the  continent  of  America,"  in  his  reference  to  Russia's  posses- 


21 


sions,  was  used  in  a  territorial  sense,  and  not  in  a  geographical 
sense.  He  was  drawing  the  distinction  between  the  territory 
of  "  America  "  and  the  territory  of  the  "  Russian  possessions." 
Mr.  Adams  did  not  intend  to  assert  that  these  territorial  rights 
of  Russia  had  no  existence  on  the  continent  of  North  America. 
He  meant  that  they  did  not  exist  as  the  ukase  of  the  Emperor 
Alexander  had  attempted  to  establish  them — southward  of  the 
Aleutian  peninsula  and  on  that  distinctive  part  of  the  conti- 
nent claimed  as  the  territory  of  the  United  States.  "  America  " 
and  the  "  United  States  "  were  then,  as  they  are  now,  com- 
monly used  as  synonymous. 

The  Government  of  the  United  States  has  steadily  main- 
tained that  in  neither  of  these  treaties  with  Russia  was  there 
any  attempt  at  regulating  or  controlling,  or  even  asserting  an 
interest  in,  the  Russian  Posses.sions  and  the  Behring  Sea,  which 
lie  far  to  the  north  and  west  of  the  territory  which  formed  the 
basis  of  the  contention. 

These  treaties  were  therefore  a  practical  renunciation,  both 
on  the  part  of  England  and  the  United  States,  of  any  rights 
in  the  waters  of  Behring  Sea  during  the  period  of  Russia's 
sovereignty.  They  left  the  Behring  Sea  and  all  its  coasts  and 
islands  precisely  as  the  ukase  of  Alexander  in  1821  left  them, 
that  is,  with  a  prohibition  against  any  vessel  approaching  nearer 
to  the  coast  than  one  hundred  Italian  miles,  under  danger  of 
confiscation.  The  original  ukase  of  Alexander  ( 1 8  2 1 )  claimed 
as  far  south  as  the  fifty-first  degree  of  north  latitude,  with  the 
inhibition  of  one  hundred  miles  from  the  coast  applying  to  the 
whole. 

But  the  one-hundred-mile  restriction  performed  the  function 
for  which  it  was  specially  designed  in  preventing  foreign  nations 
from  molesting,  disturbing,  or  by  any  possibility  sharing  in  the 
fur  trade.  The  fur  trade  formed  the  principal,  almost  the  sole, 
employment  of  the  Russian-American  Company. 

It  only  remains  to  say  that  whatever  duty  Great  Britain 
owed  to  Alaska  as  a  Russian  province,  whatever  she  agreed 
to  do,  or  to  refrain  from  doing,  touching  Alaska  and  the 
Behring  Sea,  was  not  changed  by  the  mere  fact  of  the  transfer 
to  the  United  States.  It  was  explicitly  declared,  in  the  sixth 
article  of  the  treaty  by  which  the  territory  was  ceded  by 
Russia,  that  "  the  cession  hereby  made  conveys  all  the  rights, 


-,^> 


t 


aa 


franchises,  and  privileges  now  belonging  to  Russia  in  the  said 
territory  or  dominions  and  appurtenances  thereto."  Neither 
by  the  treaty  with  Russia  of  1825,  nor  by  its  renewal  in  1843, 
nor  by  its  second  renewal  in  1859,  did  Great  Britain  gain  any 
right  to  take  seals  in  Behring  Sea. — Foreign  Relations,  1890, 
PP-  439»  440. 


1890,  Aug.   2. 


Prime-Minister  Salisbury  to  Minister 
Pauncefote. 


You  will  state  that  Her  Majesty's  Government  have  no 
desire  whatever  to  refuse  to  the  United  States  any  jurisdic- 
tion in  Behring's  Sea  which  was  conceded  by  Great  Britain 
to  Russia,  and  which  properly  accrues  to  the  present  possess- 
ors of  Alaska  in  virtue  of  treaties  or  the  law  of  nations ;  and 
that  if  the  United  States  Government,  after  examination  of 
the  evidence  and  arguments  which  I  have  produced,  still  differ 
from  them  as  to  the  legality  of  the  recent  capture s  in  that 
sea,  they  are  ready  to  agree  that  the  question,  witl  he  issues 
that  depend  upon  it,  should  be  referred  to  impartua  arbitra- 
tion.— Foreign  Relations,  1890,  p.  465. 


1890,   Dec.    17. 


Secretary   Blaine   to   Minister 
Pauncefote. 


Great  Britain  contends  that  the  phrase  "  Pacific  Ocenn," 
as  used  in  the  treaties,  was  intended  to  include,  and  does  in- 
clude, the  body  of  water  which  is  now  known  as  the  Behring 
Sea.  The  United  States  contends  that  the  Behring  Sea  was 
not  mentioned,  or  even  referred  to,  in  either  treaty,  and  was 
in  no  sense  included  in  the  phrase  "  Pacific  Ocean."  If 
Great  Britain  can  maintain  her  position  that  the  Behring  Sea 
at  the  time  of  the  treaties  with  Russia  of  1824  and  1825  was 
included  in  the  Pacific  Ocean,  the  Government  of  the  United 
States  has  no  well-grounded  complaint  against  her.  If,  on  the 
other  hand,  this  Government  can  prove  beyond  all  doubt  that 
the  Behring  Sea,  at  the  date  of  the  treaties,  was  understood  by 
the  three  signatory  Powers  to  be  a  separate  body  of  water,  and 
was  not  included  in  the  phrase  "Pacific  Ocean,"  then  the 
American  case  against  Great  Britain  is  great  and  undeniable. 

The  dispute  prominently  involves  the  meaning  of  the  phrase 
"  northwest  coast,"  or  "  northwest  coast  of  America."     Lord 


n  the  said 

Neither 

1  in  1843, 

I  gain  any 

1890, 


7ns, 


Minister 

have  no 
r  jurisdic- 
Lt  Britain 
t  possess- 
ons;  and 
nation  of 
still  differ 
s  in  that 
he  issues 
1  arbitra- 

STER 

Ocenn," 

does  in- 

Behring 

Sea  was 

and  was 

m."     If 

ring  Sea 

?2  5  was 

United 

on  the 

ibt  that 

tood  by 

er,  and 

en  the 

liable. 

phrase 

Lord 


Salisbury  assumes  that  the  "  northwest  coast "  has  but  one 
meaning,  and  that  it  includes  the  whole  coast  stretching  north- 
ward to  the  Behring  Straits.  The  contention  of  this  Govern- 
ment is  that  by  long  prescription  the  "  northwest  coast  "  means 
the  coast  of  the  Pacific  Ocean  south  of  the  Alaska  Peninsula, 
or  south  of  the  sixtieth  parallel  of  north  latitude  ;  or,  to  define 
it  still  more  accurately,  the  coast  from  the  northern  border  of 
the  Spanish  possessions,  ceded  to  the  United  States  in  181 9, 
to  the  point  where  the  Spanish  claims  met  the  claims  of 
Russia,  viz.,  from  42°  to  60°  north  latitude.  .  .  .  Russia 
practically  withdrew  the  operation  of  the  ukase  of  1821  from 
the  waters  of  the  northwest  coast  of  the  Pacific  Ocean,  but 
the  proof  is  conclusive  that  it  was  left  in  full  force  over  the 
waters  of  the  Behring  Sea.  ...  It  is  easy  to  pro  /e  from,  other 
sources  that  in  the  treaty  between  the  United  States  and 
Russia  the  coast  referred  to  was  that  which  I  ha  /e  defined  as 
the  "  northwest  coast  "  of  the  Pacific  Ocean  south  of  60°  north 
latitude,  or,  as  the  Russians  for  a  long  time  believed  it,  59° 
30'.  We  have  in  the  Department  of  State  the  originals  of  the 
proto  ols  between  our  minister  at  St.  Petersburg,  Mr.  Henry 
Middleton,  and  Count  Nesselrode,  of  Russia,  who  negotiated 
the  treaty  of  1824,  .  .  .  We  feel  justified  in  asking  His  Lord- 
ship if  the  Government  of  Great  Britain  has  uniformly  illus- 
trated these  precepts  by  example,  or  whether  she  has  not  es- 
tablished at  least  one  notable  precedent  which  would  justify 
us  in  making  greater  demands  upon  Her  Majesty's  Govern- 
ment touching  the  Behring  Sea  than  either  our  necessities  or 
our  desires  have  ever  suggested.  .  .  .  Napoleon  was  promptly 
sent  by  Great  Britain  to  the  island  of  St.  Helena  as  a  prisoner 
for  life.  Six  months  after  he  reached  St,  Helena  the  British 
Parliament  enacted  a  special  and  extraordinary  law  for  the 
purpose  of  making  his  detention  more  secure.  .  .  .  The  statute 
.  .  .  forbids  them  to  "  hover  within  eight  leagues  of  the  coast 
of  the  island."  The  penalty  for  hovering  within  eight  leagues 
of  the  coast  is  the  forfeiture  of  the  ship  to  His  Majesty  the 
King  of  Great  Britain,  on  trial  to  be  had  in  London,  and  the 
offenses  to  be  the  same  as  if  committed  in  the  county  of  Mid- 
dlesex. ... 

The  repeated  assertions  that  the  Government  of  the  United 
States  demands  that  the  Behring  Sea  be  pronounced  mare 


34 

clausum,  are  without  foundation.  The  Government  has  never 
claimed  it  and  never  desired  it.  It  expressly  disavows  it.  At 
the  same  time  the  United  States  does  not  lack  abundant 
authority,  according  to  the  ablest  exponents  of  International 
law,  for  holding  a  small  section  of  the  Behring  Sea  for  the  pro- 
tection of  the  fur-seals.  Controlling  a  comparatively  restricted 
area  of  water  for  the  one  specific  purpose  is  by  no  means 
the  equivalent  of  declaring  the  sea,  or  any  part  thereof,  jnan' 
clausum.  Nor  is  it  by  any  means  so  serious  an  obstruction  as 
Great  Britain  assumed  to  make  in  the  South  Atlantic,  nor  so 
groundless  an  interference  with  the  common  law  of  the  sea  as 
is  maintained  by  British  authority  to-day  in  the  Indian  Ocean. 
— Foreig7i  Relations^  1890,  pp.  477,  480,  484,  496,  500. 


1891,  June  15. 


Modus  Vivendi  between  Great  Britain 
AND  THE  United  States. 


1.  Her  Majesty's  Government  will  prohibit,  until  May  next, 
seal  killing  in  that  part  of  Behring  Sea  lying  eastward  of  the 
line  of  demarcation  described  in  Article  No.  i  of  the  treaty 
of  1867  between  the  United  States  and  Russia,  "and  will 
promptly  use  its  best  efforts  to  insure  the  observance  of  this 
prohibition  by  British  subjects  and  vessels." 

2.  The  United  States  Government  will  prohibit  seal  killing 
for  the  same  period  in  the  same  part  of  Behring  Sea,  and  on 
the  shores  and  islands  thereof,  the  property  of  the  United 
States  (in  excess  of  7,500  to  be  taken  on  the  islands  for  the 
subsistence  and  care  of  the  natives),  and  will  promptly  use  its 
best  efforts  to  insure  the  observance  of  this  prohibition  l)y 
United  States  citizens  and  vessels. 

3.  Every  vessel  or  person  offending  against  this  prohibi- 
tion in  the  said  waters  of  Behring  Sea  outside  of  the  ordinary 
territorial  limits  of  the  United  States,  may  be  seized  and  de- 
tained by  the  naval  or  other  duly  commissioned  officers  of  either 
of  the  High  Contracting  Parties,  but  they  shall  be  handed  over 
as  soon  as  practicable  to  the  authorities  of  the  nation  to  which 
they  respectively  belong,  who  shall  alone  have  jurisdiction  to 
try  the  offense  and  impose  the  penalties  for  the  same.  .  .  . 

4.  In  order  to  facilitate  such  proper  inquiries  as  Her  Ma- 
jesty's Government  may  desire  to  make,  with  a  view  to  the 
presentation  of  the  case  of  that  Government  before  arbitrators, 


has  never 
ws  it.     At 

abundant 
ernational 
or  the  pro- 
■  restricted 
no  means 
reof,  7nare 
ruction  as 
tic,  nor  so 
the  sea  as 
an  Ocean. 
500. 

"  Britain 

May  next, 
ird  of  the 
the  treaty 
"  and  will 
ce  of  this 

eal  killing 
a,  and  on 
e  United 
s  for  the 
ly  use  its 
ition  l)y 

prohibi- 
I  ordinary 

and  de- 
I  of  either 
fled  over 
to  which 
jiction  to 

[er  Ma- 
to  the 
litrators, 


and  in  expectat.on  that  an  agreement  for  arbitration  may  be 
arrived  at,  it  is  agreed  that  suitable  persons  designated  by 
Great  Britain  will  be  permitted  at  any  time,  upon  application, 
to  visit  or  to  main  upon  the  seal  islands  during  the  present 
sealing  season  for  that  purpose. — Senate  Executive  Documents, 
52  Cong.,  I  Sess.,  No.  55,  p.  46. 

1892,  Feb.  29.     Decision  of  the  Supreme  Court  of  the 
United  States  in  the    Savward  Case. 

The  record  .  .  .  shows  that  officers  of  the  United  States, 
acting  under  the  advice  of  their  Government,  seized  this  ves- 
sel engaged  in  catching  seal.  .  .  . 

How  did  it  happen  that  the  officers  received,  such  orders? 
It  must  be  admitted  that  they  were  given  in  the  assertion  on 
the  part  of  this  Government  of  territorial  jvirisdiction  over 
Behring  Sea  to  an  extent  exceeding  fifty-nine  miles  from  the 
shores  of  Alaska ;  that  this  territorial  jurisdiction  in  the  en- 
forcement of  the  laws  protecting  seal  fisheries  was  asserted  by 
actual  seizures  during  the  seasons  of  1886,  1887,  and  1889  of 
a  number  of  British  vessels ;  that  the  Government  persistently 
maintains  that  such  jurisdiction  belongs  to  it,  based  not  only 
on  the  peculiar  nature  of  the  seal  fisheries  and  the  property  of 
the  Government  in  them,  but  also  upon  the  position  that  this 
jurisdiction  was  asserted  by  Russia  for  more  than  ninety  years, 
and  by  that  Government  transferred  to  the  United  States ; 
and  that  investigations  are  pending  upon  the  subject.  .  .  . 

In  this  case  Her  Britannic  Majesty's  attorney-general  of 
Canada  has  presented,  with  the  knowledge  and  approval  of  the 
Imperial  Government  of  Great  Britain,  a  suggestion  on  behalf 
of  the  claimant.  .  .  .  We  are  not  insensible  to  the  courtesy  im- 
plied in  the  wilHngness  thus  manifested  that  this  court  should 
proceed  to  a  decision  on  the  main  question  argued  for  the  peti- 
tioner ;  .  .  .  but  it  is  very  clear  that,  presented  as  a  political 
question  merely,  it  could  not  fall  within  our  province  to  deter- 
mine it. — Ex  parte  Cooper,  1 2  Supreme  Court  Reporter,  \^<^,  46 1 . 

1892,  Feb.  29.     Agreement  for  an  Arbitration  between 
THE  United  States  and  Great  Britain. 

Article  VI.  In  deciding  the  matters  submitted  to  the 
arbitrators,  it  is  agreed  that  the  following  five  points  shall  be 


I 


m 


111 


26 


submitted  to  them,  in  order  that  their  award  shall  embrace  a 
distinct  decision  upon  each  of  the  said  five  points,  to  wit : 

1.  What  exclusive  jurisdiction  in  the  sea  now  known  as  the 
Behring's  Sea,  and  what  exclusive  rights  in  the  seal  fisheries 
therein,  did  Russia  assert  and  exercise  prior  and  up  to  the 
tiine  of  the  cession  of  Alaska  to  the  United  States? 

2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal 
fisheries  recognized  and  conceded  by  Great  Britain  ? 

3.  Was  the  body  of  water  now  known  as  the  Behring's  Sea 
included  in  the  phrase  "  Pacific  Ocean,"  as  used  in  the  treaty 
of  1825  between  Great  Britain  and  Russia,  and  what  rights, 
if  any,  in  the  Behring's  Sea,  were  held  and  exclusively  exercised 
by  Russia  after  said  treaty? 

4.  Did  not  all  the  rights  of  Russia  as  to  the  jurisdiction  and 
as  to  the  seal  fisheries  in  Behring's  Sea  east  of  the  water  bound- 
ary, in  the  treaty  between  the  United  States  and  Russia  of 
the  30th  of  March,  1867,  pass  unimpaired  to  the  United  States 
under  that  treaty? 

5.  Has  the  United  States  any  right,  and  if  so,  what  right, 
of  protection  or  property  in  the  fur-seals  frequenting  the 
islands  of  the  United  States  in  Behring  Sea,  when  such  seals 
are  found  outside  the  ordinary  three-mile  limit? 

Article  VII.  If  the  determination  of  the  foregoing  ques- 
tions shall  leave  the  subject  in  such  position  that  the  concur- 
rence of  Great  Britain  is  necessary  to  the  establishment  of 
Regulations  for  the  proper  protection  and  preservation  of  the 
fur-seal  in,  or  habilaally  resorting  to,  the  Behring  Sea,  the  arbi- 
trators shall  then  determine  what  concurrent  Regulations  out- 
side the  jurisdictional  limits  of  the  respective  Governments  are 
necessary,  and  over  what  waters  such  Regulations  should 
extend ;  and  to  aid  them  in  that  determination  the  report  of  a 
Joint  Commission  to  be  appointed  by  the  respective  Govern- 
ments shall  be  laid  before  them,  with  such  other  evidence  as 
eitnc-  Government  may  submit.  The  high  contracting  Par- 
ties furthermore  agree  to  co-operate  in  securing  the  adhesion 
of  other  Powers  to  such  Regulations. — Senate  Executive  Docu- 
ments^ 52  Cofig.,  I  Sess.y  No  55,  p.  4. 


\ 


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aut 


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poeti 


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the  I 

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abou 

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of  thi 


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mbrace  a 
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wn  as  the 

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ap  to  the 

0  the  seal 

ring's  Sea 
the  treaty 
lat  rights, 
exercised 

ction  and 
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tiat  right, 
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on  of  the 

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port  of  a 
Govern- 
ence  as 
ing  Par- 
adhesion 
ve  Docu- 


Walter  Scott's  Popular  PnWications. 


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investigation  by  the  student. 

SERIES  OF  1892. 

I. — The  Letter  of  Columbus  to  Santangel  announcing  his  Discovery. 
2. — The  Ostend  Manifesto.    1854. 

3. — Extracts  from  the  Sagas  describing  the  Voyages  to  Vinland. 
4. — Extracts  from  Oflicial  Declarations  of  the  United  States  embodying  the 
Monroe  Doctrine.     1789-1891.  [Double  number. 

5. — Extracts  from  the  Treaty  of  Paris  of  1763,  with  the  King's  Proclamation. 
6. — Extracts  from  papers  relating  to  the  Bering  Sea  Controversy.    1 824-1 891. 
All  of  the  above  numbers  are  now  ready  for  delivery.     Price,  for  the 
Series,  30  cents. 

ANNOUNCEMENT. 
Encouraged  by  the  success  of  the  flrst  year's  issue,  the  Publishers  take 
pleasure  in  announcing  that  the  following  numbers  will  constitute  the 


SERIES  OF  1808. 


1643- 


7. — Articles  and  Ordinances  of  the  Confederation  of  New  England. 

1684. 

8. — Exact  Text  of  the  Constitution  of  the  United  States.     1787-1870. 
9. — Papers  relating  to  the  Voyages  of  John  Cabot.     1497-1498. 
10. — Gov.  McDuffie's  Message  on  the  Slavery  Question.     1835. 
II- — Jefferson's  Proposed  Instructions  to  the  Virginia  Delegation.     1774. 

[Double  number. 
12. — Ordinances  and  other  Papers  relating  to  Secession.     1860-1861. 

The  above  six  numbers  will  be  published  bi-monthly  in  the  months  of 
January,  March,  May,  July,  September  and  November. 
Annual  subscription,  30  cents. 

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*•  They  seem  to  me  to  be  exactly  what  was  needed." 

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A,  LOVELL  &  CO.,  Publishers, 


;s: 


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